BILL REQ. #: H-3810.1
State of Washington | 62nd Legislature | 2012 Regular Session |
READ FIRST TIME 01/26/12.
AN ACT Relating to pairing required investments in compensatory environmental mitigation, including the mitigation of transportation projects, with existing programs currently referenced in Title 76 RCW that enhance natural environmental functions; amending RCW 47.01.300, 90.74.005, 90.74.010, 90.74.020, and 90.74.030; adding a new section to chapter 90.74 RCW; and adding a new section to chapter 76.09 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 47.01.300 and 1994 c 258 s 4 are each amended to read
as follows:
The department shall, in cooperation with environmental regulatory
authorities:
(1) Identify and document environmental resources in the
development of the statewide multimodal plan under RCW 47.06.040;
(2) Allow for public comment regarding changes to the criteria used
for prioritizing projects under chapter 47.05 RCW before final adoption
of the changes by the commission;
(3) Use an environmental review as part of the project prospectus
identifying potential environmental impacts, mitigation, the
utilization of the mitigation option provided in section 5 of this act,
and costs during the early project identification and selection phase,
submit the prospectus to the relevant environmental regulatory
authorities, and maintain a record of comments and proposed revisions
received from the authorities;
(4) Actively work with the relevant environmental regulatory
authorities during the design alternative analysis process and seek
written concurrence from the authorities that they agree with the
preferred design alternative selected;
(5) Develop a uniform methodology, in consultation with relevant
environmental regulatory authorities, for submitting plans and
specifications detailing project elements that impact environmental
resources, and proposed mitigation measures including the mitigation
option provided in section 5 of this act, to the relevant environmental
regulatory authorities during the preliminary specifications and
engineering phase of project development;
(6) Screen construction projects to determine which projects will
require complex or multiple permits. The permitting authorities shall
develop methods for initiating review of the permit applications for
the projects before the final design of the projects;
(7) Conduct special prebid meetings for those projects that are
environmentally complex; and
(8) Review environmental considerations related to particular
projects during the preconstruction meeting held with the contractor
who is awarded the bid.
Sec. 2 RCW 90.74.005 and 1997 c 424 s 1 are each amended to read
as follows:
(1) The legislature finds that:
(a) The state lacks a clear policy relating to the mitigation of
wetlands and aquatic habitat for infrastructure development;
(b) Regulatory agencies have generally required project proponents
to use compensatory mitigation only at the site of the project's
impacts and to mitigate narrowly for the habitat or biological
functions impacted by a project;
(c) This practice of considering traditional on-site, in-kind
mitigation may provide fewer environmental benefits when compared to
innovative mitigation proposals that provide benefits in advance of a
project's planned impacts and that restore functions or habitat other
than those impacted at a project site; ((and))
(d) Regulatory decisions on development proposals that attempt to
incorporate innovative mitigation measures take an unreasonably long
period of time and are subject to a great deal of uncertainty and
additional expenses; and
(e) Greater environmental benefits are achievable through
compensatory wetland mitigation when the collective mitigation
investments of project proponents is paired with the structure of
existing, successful state programs that are designed to enhance and
preserve aquatic and riparian functions but are not achieving their
maximum, collective benefit due to a lack of funding support. Programs
such as the family forest fish passage program have a logical and
physical nexus with many underlying projects, especially road projects,
and are proven to create a sustained benefit in the aquatic environment
at a per-dollar-invested level greater than other mitigation options
currently available.
(2) The legislature therefore declares that it is the policy of the
state to authorize innovative mitigation measures by requiring state
regulatory agencies to consider mitigation proposals for
((infrastructure)) projects that:
(a) Are timed, designed, and located in a manner to provide equal
or better biological functions and values compared to traditional on-site, in-kind mitigation proposals; or
(b) Are designed to pair collective mitigation investments with
successful state programs that are designed to enhance and preserve
aquatic and riparian functions.
(3) It is the intent of the legislature to authorize local
governments to accommodate the goals of this chapter. It is not the
intent of the legislature to: (a) Restrict the ability of a project
proponent to pursue project specific mitigation; or (b) create any new
authority for regulating wetlands or aquatic habitat beyond what is
specifically provided for in this chapter.
Sec. 3 RCW 90.74.010 and 1997 c 424 s 2 are each amended to read
as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Mitigation" means sequentially avoiding impacts, minimizing
impacts, or compensating for remaining unavoidable impacts.
(2) "Compensatory mitigation" means the restoration, creation,
enhancement, or preservation of uplands, wetlands, or other aquatic
resources for the purposes of compensating for unavoidable adverse
impacts that remain after all appropriate and practicable avoidance and
minimization has been achieved. "Compensatory mitigation" includes
mitigation that:
(a) Occurs at the same time as, or in advance of, a project's
planned environmental impacts;
(b) Is located in a site either on, near, or distant from the
project's impacts; and
(c) Provides either the same or different biological functions and
values as the functions and values impacted by the project.
(3) "Infrastructure development" means an action that is critical
for the maintenance or expansion of an existing infrastructure feature
such as a highway, rail line, airport, marine terminal, utility
corridor, harbor area, or hydroelectric facility and is consistent with
an approved land use planning process. This planning process may
include the growth management act, chapter 36.70A RCW, or the shoreline
management act, chapter 90.58 RCW, in areas covered by those chapters.
(4) "Mitigation plan" means a document or set of documents
developed through joint discussions between a project proponent and
environmental regulatory agencies that describe the unavoidable wetland
or aquatic resource impacts of ((the)) a proposed infrastructure
development or minor project and the proposed compensatory mitigation
for those impacts.
(5) "Project proponent" means a public or private entity
responsible for preparing a mitigation plan.
(6) "Watershed" means an area identified as a state of Washington
water resource inventory area under WAC 173-500-040 as it exists on
((July 27, 1997)) the effective date of this section.
(7) "Minor project" means a development project that requires the
completion of compensatory mitigation that does not meet the definition
of "infrastructure development."
Sec. 4 RCW 90.74.020 and 1997 c 424 s 3 are each amended to read
as follows:
(1) Project proponents may use a mitigation plan to propose
compensatory mitigation within a watershed. A mitigation plan shall:
(a) Contain provisions that guarantee the long-term viability of
the created, restored, enhanced, or preserved habitat, including
assurances for protecting any essential biological functions and values
defined in the mitigation plan;
(b) Contain provisions for long-term monitoring of any created,
restored, or enhanced mitigation site; and
(c) Be consistent with the local comprehensive land use plan and
any other applicable planning process in effect for the development
area, such as an adopted subbasin or watershed plan.
(2)(a) The departments of ecology and fish and wildlife may not
limit the scope of options in a mitigation plan to areas on or near the
project site, or to habitat types of the same type as contained on the
project site. The departments of ecology and fish and wildlife shall
fully review and give due consideration to compensatory mitigation
proposals that improve the overall biological functions and values of
the watershed or bay and accommodate the mitigation needs of the
infrastructure development or minor project, including proposals or
portions of proposals that incorporate the mitigation option set forth
in section 5 of this act.
(b) The departments of ecology and fish and wildlife are not
required to grant approval to a mitigation plan that the departments
find does not provide equal or better biological functions and values
within the watershed or bay.
(3) When making a permit or other regulatory decision under the
guidance of this chapter, the departments of ecology and fish and
wildlife shall consider whether the mitigation plan provides equal or
better biological functions and values, compared to the existing
conditions, for the target resources or species identified in the
mitigation plan. This consideration shall be based upon the following
factors:
(a) The relative value of the mitigation for the target resources,
in terms of the quality and quantity of biological functions and values
provided;
(b) The compatibility of the proposal with the intent of broader
resource management and habitat management objectives and plans, such
as existing resource management plans, watershed plans, critical areas
ordinances, the forestry riparian easement program, the forest
practices habitat conservation plan, the forest practices board's
acquisition program for riparian open space and critical habitat,
programs to provide public cost assistance to small forest landowners
associated with the road maintenance and abandonment processes, and
shoreline master programs;
(c) The ability of the mitigation to address scarce functions or
values within a watershed;
(d) The benefits of the proposal to broader watershed landscape,
including the benefits of connecting various habitat units or providing
population-limiting habitats or functions for target species;
(e) The benefits of early implementation of habitat mitigation for
projects that provide compensatory mitigation in advance of the
project's planned impacts; and
(f) The significance of any negative impacts to nontarget species
or resources.
(4) A mitigation plan may be approved through a memorandum of
agreement between the project proponent and either the department of
ecology or the department of fish and wildlife, or both.
NEW SECTION. Sec. 5 A new section is added to chapter 90.74 RCW
to read as follows:
(1) A project proponent may opt to satisfy, with the approval of
the department of ecology or the department of fish and wildlife, all
or a portion of the compensatory mitigation requirements for an
infrastructure development or a minor project through the inclusion in
the development or project's corresponding mitigation plan a required
monetary payment to one of the following state programs that enhances
or preserves riparian and aquatic resources:
(a) The forestry riparian easement program established in RCW
76.13.120;
(b) Incentives to landowners to provide additional conservation
measures recommended through the adaptive management program outlined
in the forest practices rules, as the term "forest practices rules" is
defined in RCW 76.09.020;
(c) The program required to be established by the forest practices
board under RCW 76.09.040 that acquires conservation easements for land
that is riparian open space or critical habitat for threatened or
endangered species; and
(d) Programs to provide public cost assistance to small forest
landowners associated with the road maintenance and abandonment
processes referenced in RCW 76.09.410(2).
(2)(a) The amount of the required payments, which program the
payment funds, and how those funds are ultimately used must be
determined by the joint discussions among the project proponent and the
environmental regulatory agencies consistent with the guidance of RCW
90.74.020. The project proponent and the environmental regulatory
agencies may decide if payments are to be made as one lump sum or as a
commitment for a series of payments over time.
(b) Although the decision as to which qualifying programs receive
contributing funding under this section must ultimately be approved by
the environmental regulatory agency charged with approving the
mitigation plan, that agency must seek input from the forest practices
board or other relevant state or federal environmental regulatory
agency in an attempt to match funding with projects that satisfy the
guidance for compensatory mitigation projects under RCW 90.74.020.
(3) Payments under this section may only be used to offset other
compensatory mitigation requirements of the infrastructure development
or minor project. Payments may not be required that are additive to
other compensatory mitigation requirements.
Sec. 6 RCW 90.74.030 and 1997 c 424 s 4 are each amended to read
as follows:
(1) In making regulatory decisions relating to wetland or aquatic
resource mitigation, the departments of ecology and fish and wildlife
shall, at the request of the project proponent, follow the guidance of
((RCW 90.74.005 through 90.74.020)) this chapter.
(2) If the department of ecology or the department of fish and
wildlife receives multiple requests for review of mitigation plans,
each department may schedule its review of these proposals to conform
to available budgetary resources.
NEW SECTION. Sec. 7 A new section is added to chapter 76.09 RCW
to read as follows:
As part of the responsibilities of the board set forth in this
chapter, it must serve as an advisory body to environmental regulatory
agencies charged with approving wetland mitigation plans that contain
direct payments to riparian and aquatic enhancement and conservation
programs as provided in section 5 of this act. However, the board's
role under section 5 of this act is limited to assisting with the
identifying and directing of payments. Neither this section nor
section 5 of this act gives the board the authority to change or
dictate how programs funded by section 5 of this act are administered.